FIC2001-071

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Steven Edelman,
		Complainants
	against		Docket #FIC 2001-071
Donald Schultz, Building Official, Town of Windham,
		Respondents	August 8, 2001

The above-captioned matter was heard as a contested case on June 25, 2001, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondent is a public agency within the meaning of §1-200(1), G.S.

2. It is found that by letter dated January 9, 2001, the complainant requested that the respondent provide him with the following records:

i) the building code that is currently in effect in the town of Windham; and

ii) the document that defines precisely when the building code that is currently in effect in the town of Windham came into effect in the town of Windham

(hereinafter “requested records”).

3. It is found that by letter dated January 11, 2001, the respondent, acknowledged receipt of the request and informed the complainant that:

i) the building code that is currently in effect in the town of Windham may be viewed at the Willimantic Public Library; and

ii) the document that defines the effective date of the current State Building Code can be found on page 61 of the State Building Code 1999 Connecticut Supplement, also available for your viewing at the Willimantic Public Library.

4. It is found that by letter dated January 26, 2001, the complainant asked the respondent to indicate whether he (the respondent) “has the building code that is currently in effect” and also that he (the respondent) “identify the document” requested in paragraph 2ii, above.

5. It is found that by letter dated January 30, 2001 the respondent acknowledged receipt of the January 26, 2001 letter and informed the complainant that “as you have been told repeatedly over the years, …you are free to inspect all public records (except those protected from disclosure) during the Town’s regular business hours.”

6. By letter of complaint dated and filed with the Commission on February 5, 2001, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by denying the complainant a copy of the records described in paragraph 2, above.

7. At the hearing in this matter, the complainant informed the Commission that his request as described in paragraph 2i, above, is not at issue and that his complaint is limited to his request as described in paragraph 2ii, above. Consequently, only the request as described in paragraph 2ii, above, will be addressed in this appeal.

8. With respect to the request as described in paragraph 2ii, above, it is found that the respondent informed the complainant that the information sought was on page 61 of the State Building Code 1999 Connecticut Supplement, which could be viewed in the library. Page 61 of the State Building Code 1999 Connecticut Supplement indicates an effective date of the State Building Code as May 1, 1999. It is also found that the respondent does not maintain a copy of the State Building Code. Such Code is maintained in the Willimantic Public Library.

9. The complainant contends that the respondent failed to provide him with any records in response to his request, and directed the complainant to a document not responsive to his request.

10. A thorough review of the record in this case makes clear that the complainant’s complaint is really about his disagreement with the respondent’s view that the effective date of the building code in effect in Windham is May 1, 1999. The complainant’s position is that the effective date is May 16, 2000. He therefore contends that the document to which the respondent referred him (page 61 of the State Building Code 1999 Connecticut Supplement), is not responsive to his request.

11. What is also clear from the record is that the document (a town of Windham Board of Selectmen Ordinance 2022) which, in the complainant’s view, shows the correct effective date of the building code in effect in the town of Windham as May 16, 2000, and which, in the complainant’s view should have been provided to him by the respondent, was actually in the complainant’s possession prior to his request to the respondent, and prior to the filing of the complaint in this matter.

12. It is found that because the complainant had in his possession the record he claims he was seeking, and because he made his request knowing that his opinion differs from that of the respondent regarding the effective date issue, such request was deliberately framed and presented to vex and harass the respondent.

13. It is found that the complainant is unreasonably attacking the respondent in this forum and simply trying to wage a war, or as he describes it in his brief filed with the Commission on June 29, 2001, “a fight” that he claims the respondent picked.

14. It is found that the actions of the complainant with respect to the request at issue are not the actions of a citizen acting upon reasonable grounds and trying in good faith to obtain public records.

15. It is found that the complainant’s request was intentionally worded in a manner that the complainant knew full well would invoke a response from the respondent, other than the response the complainant feels is accurate with respect to the effective date issue.

16. It is therefore found that the complainant’s request, and appeal from what he claims was a denial by the respondent, is entirely frivolous.

17. Pursuant to §1-206(b)(2), G.S., the Commission has the authority to impose a civil penalty against a complainant. That provision provides:

If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars.

18. It is found that the complainant has taken this appeal to the Commission frivolously, without reasonable grounds and solely for the purpose of harassing the respondent, within the meaning of §1-206(b)(2), G.S.

19. It is found that the complainant was not denied access to a record in response to his request. Rather it is found that the complainant takes issue with the document he was provided. It is further found that the complainant filed this complaint hoping to compel the respondent to accept the complainant’s view about the effective date issue.

20. Based on the foregoing, it is concluded that the respondent did not violate §1-210(a), G.S., as alleged in the complaint.

21. It is further concluded that this Commission has no authority to rule on what constitutes the effective date of the building code currently in effect in the town of Windham.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 8, 2001.

_________________________________________

Petrea A. Jones

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

Steven Edelman

Frog Pond

Windham Center, CT 06280

Donald Schultz, Building Official,

Town of Windham

c/o Richard S. Cody, Esq.

21 East Main Street

PO Box 425

Mystic, CT 06355

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-071/FD/paj/08/14/2001